Doctoral Degrees (Private Law)

Permanent URI for this collection

https://scholar.sun.ac.za/handle/10019.1/3638

Browse

Browsing Doctoral Degrees (Private Law) by browse.metadata.advisor "De Waal, M. J."

Now showing 1 - 2 of 2
  • Thumbnail Image
    Item
    Invloed van die begrip kinderregte op die privaatregtelike ouer-kind verhouding in die Suid-Afrikaanse reg
    (Stellenbosch : University of Stellenbosch, 1998-12) Human, Cornelia Sophia; De Waal, M. J.; University of Stellenbosch. Faculty of Law. Dept. of Private Law.
    ENGLISH ABSTRACT: The thesis investigates the effect of the recognition of the rights of the child on the parent-child relationship in private law. Rights of the child seem, on the face of it, to undermine parental authority and family values. The impression is created that the state is abdicating its role as protector of the child in favour of unfettered freedom of the child. The delicate balance between individual freedom and family autonomy may in the result also be under threat. It was, therefore, necessary to extend the investigation to include the role of parents and that of the state. The study is divided into three parts. The first contains a theoretical analysis of the concept rights of the child. It is clear that the concept is a manifestation of fundamental human rights. The rights of the child are unique in nature and accommodate the changing phases of dependence and developing abilities of the child. Theoretical analysis negates the perception that the recognition of the rights of the child contributes to erosion of the family: the importance of the commitment of parents and of the state is apparent. The second part consists of a comprehensive review of the parent-child relationship in the South African private law, and an analysis of the public law dimension of the concept rights of the child. This part of the investigation demonstrates that parental authority is firmly rooted in legal history and that substantive private law does not recognise the child as bearer of rights within the context of the family. However, the Bill of Rights and the 1989 United Nations Convention on the Rights of the Child unequivocally give public law status to the child as bearer of rights. The study shows that the private and public law status of a child cannot be isolated from one another and that adaptations will have to be made to implement the rights of the child. In the third part of the study an attempt is made to identify the kind of adaptation that must be made. The impact of the idea of the rights of the child upon the parent-child relationship in private law is investigated. Australian and Scottish law are examples of legal systems which endeavour to implement fully the concept of the rights of the child. Indigenous law places a high value on human dignity. The interaction between rights and duties in indigenous systems reflect values which are inherent in the idea of the rights of the child. The study shows that the impact of the rights of the child on the parent-child relationship is such that change and adaptation of private law is necessary. Change and adaptation are required at both theoretical and practical level. A number of obstacles which may inhibit the process of change are identified. Finally, the kind of change and adaptation required is illustrated by a number of practical examples of the impact ofchange on the parent-child relationship.
  • Thumbnail Image
    Item
    Settlor control and trustee liability: an analysis of English and offshore trust law with indicators for the development of South African trust law
    (Stellenbosch : Stellenbosch University, 2018-12) Bruwer, Elizabeth; De Waal, M. J.; Stellenbosch University. Faculty of Law. Dept. of Private Law.
    ENGLISH ABSTRACT : The trust, a creature of English law that has found its way into many other legal systems, is well known as a useful succession and tax planning tool for wealthy individuals. In recent years, globalised moves towards increased tax transparency and compliance have put pressure on the use of trusts, particularly on so-called “offshore trusts”. In addition, due to economic, financial and socio-economic changes over the last 50 years, the ways in which and reasons why trusts are used have also changed. The focus has, in some cases at least, shifted from providing for and protecting beneficiaries to providing a tax efficient vehicle for holding the settlor’s investments. Against this background, this dissertation examines how South African trust law deals with two main issues: the increased demand for settlor control over trust assets, as well as the possibility for trustees to exclude liability for breach of trust. The question arises whether, in such circumstances, a proper trust remains. The position under South African law is compared to that under English law and the law of the Channel Island of Jersey, by way of a study of legal sources including legislation and case law. The dissertation starts with an analysis of the history and state of trust law in the three relevant jurisdictions and highlights a number of core values that are present in all three jurisdictions. It then continues to examine the duties and obligations of trustees under the law of these jurisdictions, including the possibility to exclude liability for breach of trust in the trust deed. Differences between the three jurisdictions are highlighted. The next chapter investigates the phenomenon of excessive settlor control and the circumstances in which this can lead to either invalidity of the trust or to a court “going behind the trust”, thereby ignoring the normal consequences of the trust, and applying the trust assets in favour of someone other than the beneficiaries. The dissertation concludes that, in certain circumstances, excessive settlor control (particularly where powers and entitlements are combined) and a lack of trustee accountability can result in either invalidity or a court going behind the trust. Courts appear reluctant to ignore validly constituted trusts, but it is now accepted that circumstances may exist where justice and fairness would require such a step. The virtue of trustee independence emerges as an important counter to the argument of settlor control, and the dissertation proposes that this is an area where South African trust law would benefit from further development.